Federal court rulings, Department of Interior actions and Trump administration policies that threaten to strip trust land from the Mashpee Wampanoag Indians of Massachusetts do not bode well for other tribes seeking land for government casinos.
“I think there is sort of a perfect storm,” a Capitol Hill lobbyist says of the apparent lack of empathy toward American Indian tribes by the courts, Interior and the Trump White House.
“A lot of forces are lined up against tribes at this point,” says Clyde Barrow, professor of political science at the University of Texas, Rio Grande Valley.
“The tribes are in the middle of a rock and a hard place with this administration that has taken a hard line on land acquisition,” agrees Robert Anderson, director of the Native American Law Center at the University of Washington.
“It’s very problematic.”
The swirl of negativity surrounding tribal land-trust policy centers on a controversial 2009 U.S. Supreme Court ruling in Carcieri v. Salazar which states, in part, that Interior cannot take land into trust for tribes not “under federal jurisdiction” in 1934, when Congress enacted the Indian Reorganization Act (IRA). The court did not define “under federal jurisdiction.”
M Muddle
Interior under the administration of President Barack Obama placed some 321 acres of land in federal trust for the Mashpee Wampanoag Tribe, which sought to build a $1 billion casino resort in East Taunton.
The decision, issued in 2015, referenced a so-called “M opinion” drafted by Interior Solicitor Hillary Thompkins, a Navajo, to define “under federal jurisdiction.” The opinion had been used as guidance by Interior in placing land in trust in the post-Carcieri era, beginning with the newly recognized Cowlitz Indian Tribe in Washington in 2010.
But in September, President Donald Trump appointees with Interior and the Bureau of Indian Affairs, referencing the same M opinion, rescinded the Obama edict in the Mashpee case.
“The M opinion was written to give the benefit of the doubt to Indians,” says Mashpee attorney Heather Sibbison. “But the flexibility in the opinion that was meant to assist tribes was instead used to do them harm.”
Interior said the Mashpee—descendants of indigenous Americans who gathered with the Pilgrims in celebration of the first Thanksgiving in 1621—failed to prove it was “under federal jurisdiction” in 1934. Interior also said Mashpee did not meet IRA’s definition of “Indian.”
The decision was a major setback to the Mashpee, which was granted federal recognition in 2007 and was looking to casino gambling revenues to fund government services for some 2,600 tribal citizens.
“This is a tremendous blow to our tribe, without whom America’s earliest settlers would not have survived,” Mashpee Chairman Cedric Cromwell says. “It should also alarm tribal nations all across Indian Country.
“I do not believe that our country—this great nation that our tribal citizens have fought and died for—wants to return to the dark days of taking sovereign Indian land away from indigenous communities.
“If neither Congress nor the federal courts weigh in to stop this, the Trump administration will return the Mashpee Wampanoag once again to landlessness, force us to close our schools and social service programs and lead us back to despair and hopelessness.”
Interior’s decision illustrates the often-volatile ebb and flow of federal Indian policy from one administration to the next, particularly when it comes to providing trust lands for indigenous communities.
Sweeping Pendulum
Following a virtual moratorium on tribal trust lands under President George W. Bush (2001 to 2009), Interior under Obama placed some 600,000 acres in trust for Indian governments.
The pendulum is again swinging the other way. The Trump administration is taking a hard line on land-trust applications from tribes, particularly when it involves casino gambling.
“The administration is obviously not excited about having land taken into trust,” says John Echohawk, a Pawnee and director of the Native American Rights Fund. “As you recall, the Bush administration had problems with that, too.
“This all revolves around Carcieri and what constitutes federal jurisdiction in 1934. The Obama administration had issued guidance on that and Mashpee Wampanoag met that criterion. But this administration says they don’t.
“Tribes have to deal with whatever federal policy is out there,” Echohawk says. “That’s kind of the way it’s been.”
The Mashpee decision is believed to be the brainchild of Interior Associate Deputy Secretary James Cason, a Trump appointee and veteran of the Bush administration. Cason, while serving under Bush, was the author of a controversial “commutability standard” in placing land in trust for casinos.
Meanwhile, proposed Interior changes to Code of Federal Regulations (CFR) 151 governing land acquisitions have also come under fire from tribal leaders who contend the rule changes threaten to make the already painfully bureaucratic process longer and more difficult and costly for tribes.
“These proposed changes are dramatic,” writes Michigan State University law professor Matthew Fletcher, a citizen of the Grand Traverse Band and author of the website Turtle Talk.
“If you are a tribe that doesn’t have a large consolidated land base, these proposed changes will make it harder to have lands placed into trust,” Fletcher says. “They will also put more of a financial burden on tribes seeking to place land into trust, and further politicize this process.”
Tribes ‘Abandoned’ By Interior
Mashpee has the backing of Taunton officials and most of its citizens. It also had guaranteed funding for the resort from Malaysian gambling giant Genting Group. After years of efforts to achieve federal recognition and trust lands, ground was broken for the 900-room hotel, casino and water park in 2016.
But the project was placed on hold later that year, when District Court Judge William Young, ruling on a lawsuit filed by a group of citizens, remanded the case back to Interior to determine whether Mashpee fit the IRA definition of “Indians” residing on a reservation and assess whether the tribe was “under federal jurisdiction” in 1934.
That decision came down September 7 in a 28-page ruling signed by Assistant Secretary for Indian Affairs Tara Sweeney, who had assumed her position only two months earlier.
Although the Wampanoag have lived in Mashpee for centuries and were recognized as a tribe by the state and federal governments, Sweeney ruled the federal government never held official authority over the tribe through treaties or other actions as required in Carcieri.
The land remains in trust status pending a court edict.
“We have been utterly abandoned by our federal trustee,” Cromwell says.
Mashpee filed a complaint in Federal District Court for the District of Columbia challenging Interior’s failure to protect the tribe’s reservation, calling the ruling “arbitrary, capricious, and contrary to the department’s own administrative decisions and clear law.”
The tribe is also looking to federal legislation—the Mashpee Wampanoag Tribe Reaffirmation Act—to protect its reservation trust status. But the bill is facing opposition from Rhode Island Democrats seeking to protect their own casino industry.
“America has a painful history of systematically ripping apart tribal lands and breaking its word. We cannot repeat that history,” bill sponsors U.S. Senators Elizabeth Warren and Edward J. Markey said in a joint statement.
“The decision by the Trump administration to move forward with denying the Mashpee Wampanoag a right to their ancestral homeland and to keep their reservation is an injustice.”
But it may be tough convincing other members of Congress. Rhode Island’s congressional delegation has come out opposed to the bill. The Ocean State delegation, led by Rep. David Cicilline, whose district includes the state’s entire gaming industry, sees the tribal casino as potentially harmful gaming competition for their two casinos. Rhode Island’s two U.S. senators, Jack Reed and Sheldon Whitehouse, have told the Providence Journal that they also oppose the bill.
“This decision doesn’t just affect Mashpee,” says Lance Gumbs, a trustee for the Shinnecock Indian Nation, which gained official recognition in 2010. “It doesn’t just affect Shinnecock. It affects any tribe recognized after 1934.”
The National Congress of American Indians (NCAI) in a statement says it is “is extremely disappointed in this decision, as it reflects the obvious failure of the federal government to uphold its trust responsibility to Indian tribes.”
“This decision is going to be telling about the current administration’s land policies toward Indians,” Derrick Beetso, NCAI general counsel, told the Cape Cod Times.
“The notion that the Mashpee Wampanoag are not Indians under any definition of the word is laughable, if so much were not at stake,” the Herald News editorialized. “The tribe has inhabited this region for millennia, despite efforts to crush its customs, its language, and its way of life.”
Local Impacts Problematic
A group of local homeowners are challenging Mashpee’s right to claim Taunton as a sovereign reservation. The litigation is largely funded by Chicago billionaire casino developer Neil Bluhm, whose casino company, Rush Street Gaming, hopes to build a casino in Brockton, 15 miles away.
“They are longtime residents of a semi-rural, quiet community,” attorney David Tennant says of his clients. “They’re homeowners, coaches, members of community groups. Some are semi-retired. Some are working.
“They’re salt of the earth, good people who were aghast at the idea of a mega-casino resort being plunked down in the middle of their community.”
Tribal gambling—which exploded into a $32 billion industry under the Indian Gaming Regulatory Act (IGRA) of 1988—has played political havoc with tribal efforts to reacquire ancestral lands lost through centuries of failed federal Indian policy.
Trust land is crucial to tribes seeking housing, health facilities, schools and other infrastructure to build and strengthen their governments and provide services to indigenous citizens.
Despite the fact only about two dozen of 2,100 tribal land-trust applications under Obama involved casinos, Congress has failed to enact a legislative “fix” to the Carcieri ruling. Senators demand the Interior process be amended to give more authority to state and local governments.
“You’ve lost control as a citizen,” Tennant says of the fears his clients have of tribal authority over trust lands. “You can’t go to your local government for zoning and land use restrictions. You can’t go to the state for environmental hazard mitigation.
“You’re completely dependent on a whole new government structure. It’s highly problematic to anyone within spitting distance of a development like this to make sure the off-site impacts are mitigated.”
The Mashpee have MOUs with local authorities mitigating impact of a large casino resort development. Taunton officials bemoan the lack of revenues should the project be abandoned.
Sources contend legislation to create a “clean fix” to the Carcieri ruling proposed in 2012 was scuttled by lobbyists for gambling tribes fearful that competition would be generated by newly recognized tribes establishing casinos on their initial reservations.
But lobbyists with Akin-Gump, IETAN and other prominent firms argued that there were not enough votes to get remedial legislation through the Senate. They claimed senators wanted concessions to limit gambling on newly acquire land, termed “off-reservation gambling.”
“Gaming has turned federal Indian policy upside down,” says Gumbs, a boyhood friend of Cromwell. “It’s turned on its head not because of the policymakers, but the tribes themselves and their influence through lobbyists and lawyers. They’re getting in the way of what should be a common law policy for all of the tribes.
“Because of greed, because of market share, the gaming industry has reared its ugly head with what already had been a difficult situation with regard to federal recognition and getting land into trust.
“There just really needs to be an act of Congress, to step in there and separate themselves from the lobbyists and the lawyers and do what’s right for Indian Country,” Gumbs says of the likelihood of a Carcieri fix. “We all know that’s not going to happen.”
‘First Contact’ Tribes Face Problems
Proving they were somehow under the jurisdiction of the federal government is particularly problematic for “first contact” indigenous people in the East Coast who encountered European settlers before establishment of the United States.
Attorneys for the Mashpee people provided Interior with documents showing the tribe was under federal jurisdiction with the signing of the U.S. Constitution in 1789, when East Coast tribal subservience to the British Crown was conferred to the U.S. government.
Mashpee documents include colonial deeds conveying lands to the tribe in perpetuity. Mashpee ancestors also attended Carlisle Indian Industrial School, supervised by federal officials.
But Sweeney contends there was no evidence to show the commonwealth acted as proxy for the federal government. There also was no showing that federal officials exercised jurisdiction over the tribe.
“I agree that commonwealth’s actions taken on behalf of the Mashpee Tribe addressed issues similar to federal legislation enacted for the benefit of tribes elsewhere,” she writes. “But that is not enough for the ‘under federal jurisdiction’ inquiry.
“The record before me contains little indicia of federal jurisdiction beyond the general principle of plenary authority,” she wrote.
The Indian Reorganization Act, also known as the Wheeler-Howard Act, was intended to restore and strengthen tribal economies and self-governance, reversing a nearly half-century era of assimilation and tribal termination and restoring land lost with the Dawes Act of 1887.
A second termination era occurred in the 1950s and ’60s.
An era of tribal self-determination was launched in 1970 by President Richard Nixon.
Nearly 150 Indian groups have received federal recognition since 1934, bringing the list to 573. The list includes about 200 Alaska Native villages. There are 325 reservations and trust lands.
Tensions In Indian Country
Some liken federal Indian policy under Trump to yet another termination era. That’s not likely as termination is the result of congressional action and not the whims of a presidential administration and Interior policy.
As many as seven federal court rulings in the last two years have been handed down supporting efforts by newly recognized and restored California tribes to acquire and place in trust land for casinos.
And Trump has signed legislation granting federal recognition to six Virginia tribes. The bill precludes the tribes from operating gambling.
“I think that’s overstating things,” attorney Anderson says of those equating Trump administration policies to the launch of another termination era. “That has to come from Congress. But there sure is evidence the administration wants to hold the line on the status of tribal sovereignty in terms of who is recognized and can get land taken into trust.”
Sweeney told a September 12 gathering of tribes for Tribal Unity Impact Days in Washington, D.C., “I signed up for this job because I want to move the needle in Indian Country.”
Sweeney pledged to be “that advocate inside the administration.”
“We may not agree all the time, but my door will always be open,” Sweeney said.
But the assistant secretary was besieged by angry tribal leaders and others who assailed the administration policy, including its decision to withhold trust land from the Mashpee.
“Help me help my community, protect the women in my community, protect children in my community and keep our land under our feet with our jurisdiction and sovereignty in place,” Mashpee Vice Chairman Jessie Little Doe Baird told the gathering, according to an account in Indian Country Today.
“You did a wrong thing,” Baird told Sweeney.
Cromwell is concerned that the lack of trust land will discourage efforts to provide schools, housing and other governmental infrastructure to Mashpee citizens.
“We still have our land in trust,” he says. “We still get some federal funding based on our having trust lands. But there’s certainly a host of other federal funds that we’re not getting because some federal agencies are confused about the status of the land.
“The impact involves the mass hysteria the Interior Department created.”
Cromwell says he is frustrated at the failure of the Trump White House and Interior to acknowledge the federal intent of IRA, which was to restore indigenous Americans and their sovereign governments. He’s hopeful Congress will assist Mashpee and encourage policy changes at Interior.
“We have to remain hopeful the White House and the Department of the Interior will work together to keep past promises and right the historical wrongs,” Cromwell says. “We got to make sure they strive for justice, restoration and self-determination.”
